SUPREME COURT OF THE UNITED STATES
It is so ordered.
1 Doctor Lamm received his master's and doctor of medicine degrees from the University of Southern California. He has served as a consultant in birth defect epidemiology for the National Center for Health Statistics and has published numerous articles on the magnitude of risk from exposure to various chemical and biological substances. App. 34-44.
2 For example, Shanna Helen Swan, who received a master's degree in biostatics from Columbia University and a doctorate in statistics from the University of California at Berkeley, is chief of the section of the California Department of Health and Services that determines causes of birth defects, and has served as a consultant to the World Health Organization, the Food and Drug Administration, and the National Institutes of Health. App. 113-114, 131-132. Stewart A. Newman, who received his master's and a doctorate in chemistry from Columbia University and the University of Chicago, respectively, is a professor at New York Medical College and has spent over a decade studying the effect of chemicals on limb development. App. 54-56. The credentials of the others are similarly impressive. See App. 61-66, 73-80, 148-153, 187-192, and Attachment to Petitioners' Opposition to Summary Judgment, Tabs 12, 20, 21, 26, 31, 32.
3 For a catalogue of the many cases on either side of this controversy, see P. Gianelli & E. Imwinkelried, Scientific Evidence § 1-5, pp. 10-14 (1986 & Supp. 1991).
4 See, e. g., Green, Expert Witnesses and Sufficiency of Evidence in Toxic Substances Litigation: The Legacy of Agent Orange and BendectinLitigation, 86 Nw. U. L. Rev. 643 (1992) (hereinafter Green); Becker & Orenstein, The Federal Rules of Evidence After Sixteen Years--The Effect of "Plain Meaning" Jurisprudence, the Need for an Advisory Committee on the Rules of Evidence, and Suggestions for Selective Revision of the Rules, 60 Geo. Wash.L.Rev. 857, 876-885 (1992); Hanson, "James Alphonso Frye is Sixty Five Years Old; Should He Retire?," 16 W. St. U. L. Rev. 357 (1989); Black, A Unified Theory of Scientific Evidence, 56 Ford. L. Rev. 595 (1988); Imwinkelried, The "Bases" of Expert Testimony: The Syllogistic Structure of Scientific Testimony, 67 N.C. L. Rev. 1 (1988); Proposals for a Model Rule on the Admissibility of Scientific Evidence, 26 Jurimetrics J. 235 (1986); Gianelli, The Admissibility of Novel Scientific Evidence: Frye v. United States, A Half Century Later, 80 Colum. L. Rev. 1197 (1980); The Supreme Court, 1986 Term, 101 Harv. L. Rev. 7, 119, 125-127 (1987).
Indeed, the debates over Frye are such a well established part of the academic landscape that a distinct term--%Frye%ologist"--has been advanced to describe those who take part. See Behringer, Introduction, Proposals for a Model Rule on the Admissibility of Scientific Evidence, 26 Jurimetrics J., at 239, quoting Lacey, Scientific Evidence, 24 Jurimetrics J. 254, 264 (1984).
5 Like the question of Frye's merit, the dispute over its survival has divided courts and commentators. Compare, e. g., United States v. Williams, 583 F. 2d 1194 (CA2 1978), cert. denied, 439 U.S. 1117 (1979) (Frye is superseded by the Rules of Evidence), with Christopherson v. Allied Signal Corp., 939 F. 2d 1106, 1111, 1115-1116 (CA5 1991) (en banc) (Frye and the Rules coexist), cert. denied, ___ U. S. ___ (1992), 3 J. Weinstein & M. Berger, Weinstein's Evidence ¶ 702, pp. 702-36 to 702-37 (1988) (hereinafter Weinstein & Berger) (Frye is dead), and M. Graham, Handbook of Federal Evidence § 703.2 (2d ed. 1991) (Frye lives). See generally P. Gianelli & E. Imwinkelried, Scientific Evidence § 1-5, pp. 28-29 (1986 & Supp. 1991) (citing authorities).
6 Because we hold that Frye has been superseded and base the discussion that follows on the content of the congressionally enacted Federal Rules of Evidence, we do not address petitioners' argument that application of the Frye rule in this diversity case, as the application of a judge made rule affecting substantive rights, would violate the doctrine of ErieR. Co. v. Tompkins, 304 U.S. 64 (1938).
7 The Chief Justice "do[es] not doubt that Rule 702 confides to the judge some gatekeeping responsibility," post, at 4, but would neither say how it does so, nor explain what that role entails. We believe the better course is to note the nature and source of the duty.
8 Rule 702 also applies to "technical, or other specialized knowledge." Our discussion is limited to the scientific context because that is the nature of the expertise offered here.
9 We note that scientists typically distinguish between "validity" (does the principle support what it purports to show?) and "reliability" (does application of the principle produce consistent results?). See Black, A Unified Theory of Scientific Evidence, 56 Ford. L. Rev. 595, 599 (1988). Although "the difference between accuracy, validity, and reliability may be such that each is distinct from the other by no more than a hen's kick," Starrs, Frye v. United States Restructured and Revitalized: A Proposal to Amend Federal Evidence Rule 702, 26 Jurimetrics J. 249, 256 (1986), our reference here is to evidentiary reliability--that is, trustworthiness. Cf., e. g., Advisory Committee's Notes on Fed. Rule Evid. 602 (" `[T]he rule requiring that a witness who testifies to a fact which can be perceived by the senses must have had an opportunity to observe, and must have actually observed the fact' is a `most pervasive manifestation' of the common law insistence upon 'the most reliable sources of information.' " (citation omitted)); Advisory Committee's Notes on Art. VIII of the Rules of Evidence (hearsay exceptions will be recognized only "under circumstances supposed to furnish guarantees of trustworthiness"). In a case involving scientific evidence, evidentiary reliability will be based upon scientific validity.
10 Rule 104(a) provides:
"Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b) [pertaining to conditional admissions]. In making its determination it is not bound by the rules of evidence except those with respect to privileges." These matters should be established by a preponderance of proof. See Bourjaily v. United States, 483 U.S. 171, 175-176 (1987).
11 Although the Frye decision itself focused exclusively on "novel" scientific techniques, we do not read the requirements of Rule 702 to apply specially or exclusively to unconventional evidence. Of course, well established propositions are less likely to be challenged than those that are novel, and they are more handily defended. Indeed, theories that are so firmly established as to have attained the status of scientific law, such as the laws of thermodynamics, properly are subject to judicial notice under Fed. Rule Evid. 201.
12 A number of authorities have presented variations on the reliability approach, each with its own slightly different set of factors. See, e. g., Downing, 753 F. 2d 1238-1239 (on which our discussion draws in part); 3 Weinstein & Berger ¶ 702, pp. 702-41 to 702-42 (on which the Downing court in turn partially relied); McCormick, Scientific Evidence: Defining a New Approach to Admissibility, 67 Iowa L. Rev. 879, 911-912 (1982); and Symposium on Science and the Rules of Evidence, 99 F.R.D. 187, 231 (1983) (statement by Margaret Berger). To the extent that they focus on the reliability of evidence as ensured by the scientific validity of its underlying principles, all these versions may well have merit, although we express no opinion regarding any of their particular details.
13 This is not to say that judicial interpretation, as opposed to adjudicative
factfinding, does not share basic characteristics of the scientific endeavor: "The work of a judge is in one sense enduring and in another ephemeral. . . . In the endless process of testing and retesting, there is a constant rejection of the dross and a constant retention of whatever is pure and sound and fine." B.
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